COURT FILE NO.: CR-16-1462-00
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Seeta Scully, for the Crown Respondent
Respondent
- and -
H.T.
Neil Sheiban, for the Applicant
Applicant
HEARD: March 2, 2018
SECTION 11(b) RULING
D.E HARRIS J.
[1] H.T. applies for a stay of proceedings, saying his right to a trial in a reasonable time under Section 11(b) of the Charter has been violated. The global delay is over the Jordan presumptive ceiling. The issue therefore is whether there is defence delay or exceptional circumstances which when subtracted from the total bring the delay under the Jordan threshold.
[2] The applicant was charged with sexual assault, assault, and two counts of uttering threats in December of 2014. The complainant is his spouse.
[3] This application has an unusual retrospective vantage point. The trial has already taken place. Counsel agreed that this application would be brought subsequent to it. It was agreed that the operative delay would be counted from the date the applicant was charged to the beginning of the trial in September of 2017. It is agreed that the global delay is 33 months and 6 days.
[4] The retrospective perspective permits a definitive conclusion that a significant part of the delay in this instance was directly caused by the accused himself. When this period of time is subtracted, the delay is under the Jordan line and is not unreasonable.
[5] This is what happened. A week before the first trial date of October 17, 2016 in this court, the Crown held a trial preparation meeting with the complainant. At that meeting, the complainant disclosed for the first time that the applicant had breached his recognizance by contacting her. It was specifically alleged that he was intimidating her. The complainant attended at a police station and gave a video statement the next day. The DVD of the statement was disclosed to the defence the day after that, October 12, 2016.
[6] On the scheduled trial date of October 17, 2016, in light of the new disclosure and new allegations, counsel for the applicant requested an adjournment to properly prepare. Ms. Prenger, the Crown with carriage of the trial, consented.
[7] At the eventual trial of the original charges in September of 2017, the charges with respect to the breach of the bail no-contact clause and intimidation of a justice system participant were joined at defence request. The applicant was convicted of both of the new charges--the breach and the intimidation counts. There was mixed success with respect to the original charges.
[8] In the unusual circumstances of this case, we now know that the first trial date was missed and significant delay was caused by the actions of the applicant himself. Were it not for his criminal offences against the complainant, there would have been no new disclosure which the Crown was duty bound to provide. The defence would not have sought and obtained an adjournment of the trial.
[9] The majority in R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 wrote:
63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28).
[10] Following Jordan’s approach to delay, in a quite literal sense the delay at issue was caused by the defendant himself and then agreed to by his counsel. The defence cannot directly cause the delay and then claim it as state delay to be counted against his Section 11(b) right.
[11] The applicant argues that the Crown consent to the adjournment should lead to the ensuing delay being seen as Crown delay, not defence delay. I cannot agree. I do not think that in these circumstances, the nature of the delay could be altered by the Crown position, whatever it was. The origin of the delay and counsel’s request for an adjournment were defence actions. This is what Jordan tells us to focus on.
[12] Even if the Crown consent could theoretically convert the nature of the delay, it would not have that consequence in this case. The allegation of witness tampering was a significant development in the prosecution of the applicant. While defence counsel could have decided to press on to trial, it was an understandable and justifiable decision to take stock of the new development and ask for time to determine its bearing on the trial.
[13] Likewise, with respect to the Crown’s position, it might have been tempting to take an aggressive, adversarial approach. But instead, in an exercise of moderation and good judgment, the Crown advised that she would postpone the arrest of the applicant to ensure there was no delay in the trial. Nor would the Crown seek to call the breach evidence on the trial of the original charges. The Crown was careful not to allow the new allegations to throw a wrench into the continuing proceedings.
[14] For the Crown to have plowed forward, would have been potentially unfair. The Crown, in its role as a Minister of Justice, agreed to the adjournment. The argument that the Crown’s consent transformed the defence delay into Crown delay is not only legally incorrect but unappealing as well.
[15] The Crown’s secondary position is that the delay caused by the new allegations constitutes an exceptional circumstance under Jordan and should be subtracted from the global delay. While it may be unnecessary in view of my conclusion above to finally decide this question, the nature of the delay seems to fit the Supreme Court’s description of exceptional circumstances in Jordan. The majority said,
Exceptional Circumstances
69 Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
73 Discrete, exceptional events that arise at trial may … qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
(Emphasis in original)
Also see R. v. Cody, 2017 SCC 31 at para. 48
[16] The new allegations against the applicant were unforeseeable and unavoidable. There is no reason that a delay cannot be both defence caused and an exceptional circumstance. That is the case here.
[17] Turning to the delay that occurred, following the adjournment of the trial date, new trial dates starting February 6, 2017 was offered by the court. Defence counsel was not available until March 6, 2017. Therefore, the total delay caused by the defence adjournment request was 4 months and three weeks (October 17, 2016--March 6, 2017). Subtracting it from the global delay brings this case in under the Jordan presumptive ceiling.
[18] I would like to briefly comment on the other major period of delay which the parties argued. It pre-dates the delay period considered above. The case was up to set a date for a preliminary hearing on April 17, 2015. The trial co-ordinator provided a sheet entitled “Verification of Trial Date Provided by Trial Coordinator” which specified that the parties had been offered three sets of dates for the preliminary hearing. For the first set of dates, October 6 and 7, 2015, the Crown was available but the defence was not. October 21 and 22, 2015 were offered but again, the Crown was available but the defence was not. Both parties were available March 1 and 2, 2016 and so that date was set for the preliminary hearing.
[19] The majority judgment in Jordan instructs that the time period from the time the court and the Crown are available—October 6, 2015 in this instance—to the dates offered when the defence was also available—here March 1, 2016—is defence delay. The majority wrote,
64 … the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.
Also see Cody at para. 30
[20] The defence argues that it is unfair to impose this new Jordan rule retrospectively when counsel could not have known that the law would be changed. There are two answers to this argument. First, both the Supreme Court and the Ontario Court of Appeal have applied this rule several times in exactly the same circumstances as here without adverse comment: see R. v. Williamson 2016 SCC 28, [2016] 1 S.C.R. 741 at paras. 21-22; R. v. Mallozzi 2018 ONCA 312 at paras. 3-6; R v. Baron 2017 ONCA 772, [2017] O.J. No. 5170 at para. 47; and R. v. Mallozzi 2017 ONCA 644 at paras. 32-34; R. v. Coulter 2016 ONCA 704 at paras. 72-76.
[21] Second, the law and practice before Jordan was for counsel to specify their times of availability to signal that they were ready and willing to proceed before the dates the court was offering: see R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071. Counsel in this case was silent and did not offer any earlier dates.
[22] Justice Cromwell’s reasons in R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3 could be argued to contradict this approach. In that case, defence counsel was offered an early date but was unavailable. The Court of Appeal attributed the ensuing delay to the defence. Justice Cromwell disagreed and said at paragraph 23,
Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.
[23] Assuming for the sake of argument that Godin survives Jordan in this respect—which I think unlikely--this case is different. Defence counsel was offered and refused two sets of dates, not one. And counsel said nothing on the record to demonstrate other availability or to demonstrate cooperation. In Godin, counsel had sought out earlier dates showing an intention to move expeditiously. There is no comparable conduct in the case here.
[24] In my view, the 5 months at issue should be attributable to the defence and subtracted from the global delay. Subtracting the two defence caused delays, this case is well within the presumptive ceiling.
[25] Cases below the ceiling can still be stayed for delay if they are clear cases. The defence must show meaningful, sustained efforts to move the case along expeditiously and the delay must be clearly excessive: Jordan at paras. 99-105. Neither condition is present here.
[26] The application for a stay is dismissed.
D.E HARRIS J.
Released: April 5, 2018
COURT FILE NO.: CR-16-1462-00
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
H.T.
Applicant
SECTION 11(b) RULING
D.E HARRIS J.
Released: April 5, 2018